Miami man plans to sue department over unauthorized deletion of his footage.

A jury acquitted a Florida photojournalist who was arrested on January 31 while documenting the eviction of Occupy Miami protesters. The police accused Carlos Miller, author of a popular blog about the rights of photojournalists, of disobeying a lawful police order to clear the area. But another journalist testified he had been standing nearby without incident.

After Miller's January arrest, the police confiscated his camera and deleted some of his footage, including video documenting his encounter with the police. That may prove to be an expensive mistake. Miller was able to recover the footage, which proved helpful in winning his acquittal. He says his next step will be to file a lawsuit charging that the deletion of the footage violated his constitutional rights.

"I was questioning their orders. That's what I do"

The one-day trial occurred on Wednesday. In a Thursday interview, Miller told us that the prosecution accused him of "being antagonistic to police because I was questioning their orders." However, he said, "that's what I do. I know my rights. I know the law."

During the trial, Miller's attorney, Santiago Lavandera, admitted that Miller used some coarse language with the police officers at one point during the evening. But he stressed that it wasn't the job of a journalist to meekly obey police orders.

"When you’re a journalist, your job is to investigate," Lavandera told the jury. "Not to be led by your hand where the police want you to see, so they can hide what they don’t want you to see. As long as you are acting within the law, as Mr. Miller was, you have the right to demand and say, ‘no, I’m not moving, I have the right to be here. This is a public sidewalk, I have the right to be here.’"

Miller told us the jury deliberated for only about half an hour before returning a verdict of "not guilty." He said his case was helped by the footage he recovered from his camera. That footage, he told us, clearly showed that there were other journalists nearby when he was arrested.

One of them was Miami Herald reporter Glenn Garvin, who testified in Wednesday's trial. According to Miller, when Garvin saw Miller being arrested by Officer Nancy Perez, "he immediately thought he was going to get arrested, so he asked Nancy Perez if it was alright for him to be standing there and she said, yes, he was under no threat of getting arrested."

There's a history of confrontations between Miller and the police, and Miller said the police had singled him out for that reason. An e-mail disclosed during the trial showed the police had been monitoring Miller's Facebook page and had sent out a notice warning officers in charge of evicting the Occupy Miami protestors that Miller was planning to cover the process.

Constitutional challenge

Now that Miller doesn't have a jail sentence hanging over his head, he's planning to turn the tables on the Miami-Dade Police Department. He plans to file a lawsuit arguing the deletion of his footage by the police violated his constitutional rights.

According to Miller, such incidents are disturbingly common around the country. As camera-equipped cell phones have proliferated, ordinary Americans have increasingly used the devices to document how police officers do their jobs. And he said he heard of numerous incidents in which the police confiscate these devices and delete potentially embarrassing footage.

Miller told us most victims don't stand up for their rights in court. In many cases, people are happy simply to have the police drop the charges against them. But Miller isn't so easily cowed.

If Miller files his lawsuit, he will join a handful of other plaintiffs who have gone to court to vindicate their rights to record the activities of police officers. Judges in Massachusetts and Illinois have held it unconstitutional to arrest people for recording the activities of police. A Baltimore man has sued the police for deleting his footage from his cell phone. The Obama administration filed a brief in the case arguing that deleting such footage violates the Fourth Amendment.

Miller points out that if an ordinary citizen deleted footage relevant to an alleged crime, he could be charged with destruction of evidence, a felony. He believes that police officers should also be held accountable when they seize cameras and delete footage.

104 Reader Comments

It is unfathomable to me how an officer who deletes pictures or video [evidence] from the cellphone or camera of an arrestee is not later charged with obstruction of justice or tampering with evidence.

Miller told us most victims don't stand up for their rights in court. In many cases, people are happy simply to have the police drop the charges against them.

Couldn't agree more that many people don't have the time or energy to do what's right. Thanks to Ars for following up with this story. I remember reading about it February. And a big thanks to Miller for spending time and resources to making a stand.

That said, I have looked at some of Miller's videos on YouTube and it seems his goal to escalate a situation with an officer or security guard and have his rights challenged (or violated).

The question is, what do we do about police officers that break the law. It's something we're going to have to address, as officers who break the law get away with internal disciplines that are meaningless, while they have no qualms with slapping regular citizens with as many potential charges as possible.

Ugh... the police need to figure out that if they follow procedure properly that these videos can only vindicate them should they have to go to court over an incident. But, people tend to overreact when the fight or flight instinct for self-preservation kicks in.

Maintaining control of a confrontational/tense situation has more to do with remaining tactfully self-controlled than just bullishly imposing will upon others.

Miller points out that if an ordinary citizen deleted footage relevant to an alleged crime, he could be charged with destruction of evidence, a felony. He believes that police officers should also be held accountable when they seize cameras and delete footage.

If ordinary citizens did half the shit that police get away with, we'd all be in jail. They need to be held accountable for more than just deleting some video.

Those directly involved in the wrongful arrest and rights violations, at a minimum, need to be fired and never allowed to work in law enforcement again.

That said, I have looked at some of Miller's videos on YouTube and it seems his goal to escalate a situation with an officer or security guard and have his rights challenged (or violated).

Interesting. In all the noise about "his rights" what will society do about intentional provocateurs?

What the police should do is A) video record their interactions with provocateurs, B) if they are actually interfering with what the police are doing then give them appropriate warning that they will be arrested for such, C) if they don't stop after being warned, arrest them, and D) not erase their recordings under any circumstances.

If the police have their own recordings, both they and the "provocateurs" can show their videos at the trial. That way neither side can edit the video to show things out of context without it being obvious to the jury.

This doesn't seem very difficult to me. Video doesn't have to be the enemy of the police, it can also be a very good tool. The important thing is that no one gets to edit the recordings, so the jury can make a fully informed judgment.

Deleting footage by the police should ALWAYS be presumed to be destruction of evidence and prosecuted as a crime in and of itself. In the worst case scenario when footage is believed to be dangerous or harmful, it can be seized, charges brought, and the court can decide how to handle it. Law enforcement should never make the call to destroy evidence on their own. Never.

I hold the police to a higher standard... Sure, being a law enforcement is for the most part a tough and thankless job in today's society, but that "blue" shirt and shiny badge didn't just magically appear overnight. That was a voluntarily chosen responsibility. Tamper with evidence; face the consequences.

Lately I've been thinking that the FBI needs to form a unit whose sole purpose is to police the police, actively and aggressively investigating police malfeasance at all levels from municipal to sheriff's office to state troopers. Its painfully obvious that the various law enforcement agencies can't or won't do it themselves and police abuses are becoming more and more common.

Nancy Perez should be fired. This isn't just a simple misunderstanding or mistake - its a willful violation of law. And it is also destroying evidence of a crime. So not only should she be fired, she should also be arrested and charged.

Like many big city (and some not so big city) police departments, Miami-Dade has a very checkered past. Its painfully obvious that they lack the will or the resources to do anything about the ongoing problems in the department. Which is exactly why the responsibility to deal with those issues should belong to an objective entity completely outside the department. Nothing else will work. The feds created the TSA (problematic as that is) in record time. I see no reason why creating a police investigation squad at the FBI should be an issue.

And so what if "...it seems his goal [is] to escalate a situation with an officer or security guard and have his rights challenged (or violated)." So, in other words he is using the same techniques the police use in sting operations. Good for him. But it shouldn't have to be his responsibility to clean up crooked police departments. As I said in the beginning of this post, this is something that would be a logical task for the FBI.

That said, I have looked at some of Miller's videos on YouTube and it seems his goal to escalate a situation with an officer or security guard and have his rights challenged (or violated).

Interesting. In all the noise about "his rights" what will society do about intentional provocateurs?

What the police should do is A) video record their interactions with provocateurs, B) if they are actually interfering with what the police are doing then give them appropriate warning that they will be arrested for such, C) if they don't stop after being warned, arrest them, and D) not erase their recordings under any circumstances.

If the police have their own recordings, both they and the "provocateurs" can show their videos at the trial. That way neither side can edit the video to show things out of context without it being obvious to the jury.

This doesn't seem very difficult to me. Video doesn't have to be the enemy of the police, it can also be a very good tool. The important thing is that no one gets to edit the recordings, so the jury can make a fully informed judgment.

I can see Google Glass filling in this role really well. Beyond all the other potential uses for police officers, having a video stream constantly being uploaded to your precinct's servers would probably do quite a bit to ensure good behavior. It would also make collecting evidence a lot easier.

Also, yeah... Miller seems to be the immature 5 yo waving his finger in your face while simultaneously proclaiming, "I'm not touching you. I'm not touching you." incessantly just to get a rise out of you. Sooner or later, someone gives that kid a spanking.

Ladies and gentleman, boys and girls, don't cry when you're told not to pull the dog's tail, but you do so anyway and he turns around and bites you.

I'm sorry, but I refuse to accept that it is normal and proper for the police to react to mildly tense situations as if they were mindless animals, and really, if we as citizens are okay with this behavior and justify it, we are going to get the kind of police we deserve. The police are (or should be) trained professionals who behave as if they've sworn to serve and protect when faced with these situations. And if they don't, they're not professionals, and they get fired or censured in some way that makes it clear that we expect more of them than behaving like a dog that's been teased, to use your metaphor.

The police are not the citizens of this country's mommy or daddy and they don't get to deal out spankings, either.

I agree police shouldn't have an unreasonable expectation of privacy; if they're doing something in public, it's public.

However, there are also a lot of people who go out of their way to antagonize police, or post inflammatory videos. That also annoys the hell out of me.

What I'd like to see are orders going out to stop trying to remove video and the like (we don't need more rules, damnit, just tell them the 4th is still in place). I'd like to see libel suits against people who intentionally edit video to make the police look bad.

That said, I have looked at some of Miller's videos on YouTube and it seems his goal to escalate a situation with an officer or security guard and have his rights challenged (or violated).

Interesting. In all the noise about "his rights" what will society do about intentional provocateurs?

What the police should do is A) video record their interactions with provocateurs, B) if they are actually interfering with what the police are doing then give them appropriate warning that they will be arrested for such, C) if they don't stop after being warned, arrest them, and D) not erase their recordings under any circumstances.

If the police have their own recordings, both they and the "provocateurs" can show their videos at the trial. That way neither side can edit the video to show things out of context without it being obvious to the jury.

This doesn't seem very difficult to me. Video doesn't have to be the enemy of the police, it can also be a very good tool. The important thing is that no one gets to edit the recordings, so the jury can make a fully informed judgment.

Deleting footage by the police should ALWAYS be presumed to be destruction of evidence and prosecuted as a crime in and of itself. In the worst case scenario when footage is believed to be dangerous or harmful, it can be seized, charges brought, and the court can decide how to handle it. Law enforcement should never make the call to destroy evidence on their own. Never.

Yep, headband/hat with a camera+microphone in it linked via PAN or something to a little storage device on their belt/pocket/etc. The police should have no problems with such a thing going nonstop while on duty. Everything from "mister/mrs so&so appeared drunk with slurred speech" to "and then I witnessed what appeared to be..." or "and that's how/why the suspect was shot" becomes a unquestionable recorded fact without them needing to worry that some "weaselly lawyer" twists the events recalled from memory. The Judge/Jury/Prosecution has a video of things

But then again how often do we see that a dash cam was off, or it's footage was lost? These recordings would need to be stored by a third party not funded by the police to avoid that

Also, yeah... Miller seems to be the immature 5 yo waving his finger in your face while simultaneously proclaiming, "I'm not touching you. I'm not touching you." incessantly just to get a rise out of you. Sooner or later, someone gives that kid a spanking.

Ladies and gentleman, boys and girls, don't cry when you're told not to pull the dog's tail, but you do so anyway and he turns around and bites you.

So you're saying that police, who are supposed to be "trained professionals" cannot be expected to behave correctly when they have been (legally) baited?

Doesn't sound very professional. It's also not particularly professional that police investigate their own misconduct and generally do little to nothing about it.

Oh, and since you mention pulling the dog's tail, let's go with that analogy. My understanding is that when a "seeing eye" dog is on duty and has its working collar on it is trained not to be distracted by anything - food, pulling of the tail... so are we training these dogs better than we train our police? Maybe we should apply the same training methods?

On a more serious note, you have the right to take pictures of anything taking place in a public area, take away that right and start removing privately owned security cameras as well as things like Google StreetView.

I often take pictures of speed camera and breath testing sites and upload them to Facebook, purely as a preventative measure to ensure people don't speed or drink and drive.

Just like the police say my action is a deterrent not a revenue raiser.

...and by being able to buy a new Maserati on the city's dime, he will have proven that point.

The idea behind lawsuits like these is to provide a deterrent that teaches the police how to behave like appropriate adults.

If they don't have consequences for misbehaving then they won't learn and their recidivism will continue.

It is important for them to feel harmed or damaged at an organizational level so that it is in their own self-interest to obey the law. That way the senior bureacrats will set out policies that put pressure on the front line officers to obey the law.

Miller believes that police officers should also be held accountable when they seize cameras and delete footage.

...and by being able to buy a new Maserati on the city's dime, he will have proven that point.

Not really. If I was the city, I would say that the officers were doing this without the consent nor approval of the city and therefore the 'payment' should come solely from the officers personally.

While ethically this seems a viable option, legally unfortunately it could not happen. The legal principle of respondeat superior establishes that the State is held responsible for the acts of its agents when they are working within the scope of their duties (as was the officer here).

Miller believes that police officers should also be held accountable when they seize cameras and delete footage.

...and by being able to buy a new Maserati on the city's dime, he will have proven that point.

Not really. If I was the city, I would say that the officers were doing this without the consent nor approval of the city and therefore the 'payment' should come solely from the officers personally.

You don't get to say that because they were doing that with the consent and approval of the city! Unless you can point to classes and training saying "don't delete photos or videos" they are liable for the actions of their officers. You don't get an easy out like that.

I would ordinarily support an officer's position in this case, but illegally deleting a video definitely crosses the line. If an officer is truly in the right, then a video will do nothing but prove his/her story.

There are law enforcement offices out there that have an explicit policy that officers should not confiscate video devices such as cell phones and/or video recorders from the public in situations like this. As this Miami case illustrates, not all police have gotten the message that the public at large have the same rights in these matters as the traditional press corps do.

Someone above mentioned that the officer in question deleting the video files could be construed as criminal destruction of evidence. Problem is that may or may not be legally true. If there was a warrant to produce and hold over the data as evidence, its intentional destruction would probably be a felony. Without the warrant it may not be more than vandalism, which in this case would likely be a misdemeanor as vandalism is often rated based on monetary damages. (as usual, caveat is I'm not a lawyer).

If nothing else, turning the tables and suing for violation of the man's Constitutional rights MAY have the effect of having a formal city policy in place, training of officers for future encounters, especially if that's part of the verdict or settlement. It would be a worthy goal for the plaintiff to work towards such an outcome along with punitive measures towards the officer(s) involved consistent with the offense.

Timothy B. Lee / Timothy covers tech policy for Ars, with a particular focus on patent and copyright law, privacy, free speech, and open government. His writing has appeared in Slate, Reason, Wired, and the New York Times.